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To refer or not to refer, that is the question…

A journey is a good time to gather thoughts and reflect. Having nothing to do but sit and watch the fields go by offers an opportunity for quiet reflection and deliberation. Such stillness should not be expected by the judges of the Supreme Court as they journey through the British constitution in the coming weeks – the headlines of the weekend papers make clear that their deliberations on the Miller case will not be set within a context of calm.

This is to be regretted, for the questions facing the Supreme Court are of a magnitude that cannot be overstated. They are of long term importance not only for the relationship between the UK and the EU but also internally, for democracy the UK. As important as the decision reached by the Court – whether the government must consult Parliament before art 50 is triggered – is the procedure by which that decision is reached, namely whether the Supreme Court uses Art 267 TFEU to refer a question of interpretation to the CJEU in Luxembourg.

Art 267 TFEU

Article 267 TFEU sets out the procedure whereby national judges can send questions[1] to the CJEU for interpretation of the Treaty and adopted secondary law, and the validity of the latter. The questions sent can concern technical matters such as the classification of pyjamas[2] or constitutional issues dealing with EU citizenship[3] or the validity of the European Stability Mechanism.[4]

Art 267 TFEU states that:

(1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty b) the validity and interpretation of acts of the Institutions (2) Where such a question is raised before a court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law that court or tribunal shall bring the matter before the Court of Justice.

There is no time limit associated with the procedure: the question(s) can be sent as soon as need becomes apparent to national court/ tribunal.[5] However, this is not an appellate procedure: questions must relate to a pending dispute and be sent before a decision has been made.[6] There is no limit to the number of questions that may be in a reference,[7] or the number of references that a court can make prior to its decision, as long as these are new questions or might produce a different answer.[8] The CJ may also add to the questions sent.[9]

There is no definition in the Treaty of a ‘court or tribunal’. The guidance laid out in El Yassini[10] stressed a number of factors, such as whether the ‘body is established by law, whether it is permanent, whether its jurisdiction is compulsory,[11] whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’ However, even if a body satisfies all of these characteristics, it will not be seen as a court or tribunal unless it is required to determine a legal dispute or exercise a judicial function[12] and falls within the remit of a member state.[13]

Given its status as the Supreme Court, a question on Article 50 sent under Article 267 is unlikely to be rejected. However, given the political consequences of the question, it may not be warmly welcomed by the CJEU. Yet this would be the legally correct course of action under EU law – this is the very first time that Article 50 has been considered in any national court in the EU, and there are important questions surrounding its interpretation, in particular whether it is revocable. This issue is especially important as in Miller, the irrevocability of Article 50 played a central role in the case before the High Court: there it was held that an irrevocable Article 50 makes the need for Parliamentary involvement in its triggering crucial. However, if Article 50 is revocable, this may lead to a different conclusion. The question on revocability is thus a question of the interpretation of EU law that should be put to the CJEU under Article 267. As it is a provision of EU law, only the CJEU may interpret it.

Division of Labour

Article 267 sets out a clear division of labour: the national court determines the questions that its needs answered, the CJEU answer those questions on EU law; the national court applies this interpretation to the facts before it. The CJEU may determine admissibility but the process is driven by the national courts – it is left to the discretion of the individual judge to decide whether or when a reference should be sent, what should be asked[14] and how the interpretation should be applied. The opportunity for the CJEU to tackle important questions such as the revocability of Article 50 can be compromised in the absence of referrals.

The Treaty states that courts of last instance must refer[15] yet some such courts refuse to comply.[16] A judge may ignore a request to refer,[17] agree[18] or refuse as in Mid Sussex Advice Bureau where Elias LJ believed that a referral asking whether a volunteer was a ‘worker’ who could access rights in the Disability Discrimination Act 1995[19] when read with the Framework Directive[20] would fail.[21] Alternatively a judge may decide not to refer because they can interpret the issue adequately themselves[22] or to avoid delay.[23]

Delay is inevitable – an average reference can take over one year to be addressed. Time is clearly of the essence in the Miller case so this is a practical reason for non-referral. As Miller does not concern a person in custody, the procedure préjudicielle d’urgence (PPU)[24] in Article 267(4) TFEU cannot be used. This is a shame because the PPU removes stages found in the ordinary procedure thus can reduce the time for a reference to as little as 2 months.[25] However, given the constitutional importance of the question – for both the UK and the EU – it is likely that the CJEU will deal with the question of revocability quickly.

So what might happen if the UKSC does not refer? In CILFIT[26] the CJ introduced two caveats to the obligation – acte clair and acte éclair. The doctrine of acte clair removes the obligation where the answer to the question is very clear whilst acte éclairé removes the obligation by directing the national court to previous cases where the court had answered an identical question. Neither of these doctrines have worked well even though state liability can now arise from the failure to refer.[27]

Recently the ECtHR in Strasbourg has brought its voice to bear on this question, stressing in particular that the national court must give reasons for its non-referral – in Dhahbi,[28] it held that where a national court of last instance fails to explain its refusal to refer under EU law, this violates the right to a fair trial in Article 6 ECHR. The Italian Court of Cassation, against whose decisions there is no appeal under domestic law, had rejected the request to refer a question on whether withholding household allowance to a Tunisian resident in Italy was compatible with the Euro-Mediterranean Agreement. Drawing from Vergauwen,[29] the ECtHR held that national courts must say why the question is not relevant, or if the provision has already been interpreted or is so clear as to not require interpretation. This was confirmed in the subsequent case of Schipani vs. Italy.[30]The judgment must enable determination of how the request was addressed – it can no longer be simply ignored, as in Samin or Sandiford.

How could non-referral of a question on the revocability of Art 50 be justified? Given the feverish national political mood over Brexit, a referral could be declined for the sake of public order. It is clear why the UKSC may conclude that this would not be in the best interests of the public. However, if parliamentary sovereignty has any substance, in spite of inflammatory newspaper headlines, the Supreme Court surely must refer this question to the CJEU. This is what Parliament has instructed the judiciary to do in the European Communities Act 1972 – Parliament gave the courts the responsibility to apply EU law in the UK for and on behalf of the British people. It goes without saying that the judiciary must comply with Acts of Parliament at all times, whether we are in or out of the EU – anything else would be undemocratic and indeed contrary to the stated desires of the Brexiters. The Brexiters cannot have their cake and eat it too.

Furthermore, by not referring the Supreme Court will also be acting against its own authority and autonomy. It is often overlooked that the judiciary is the fourth branch of government: judges are a part of the state, even if judicial independence sets them apart from it. Judicial independence does not exist so that judges can do as they wish but to protect their obligation to protect citizens, upholding the rule of law without fear of consequence or favour, even where this is against the wishes of government or indeed a popular majority. A non-referral due to political pressures will undermine national confidence in the independence of the judiciary. At a time when trust in politicians and the clergy is significantly eroded, the judiciary needs to be especially careful that it’s voice does not join the ranks of the discredited.

It is untenable to argue both for parliamentary sovereignty and a non-referral to the CJEU. These positions are inconsistent and illogical. Paradoxically therefore, in order to assert and protect the constitutional order of the UK, the Supreme Court has to refer. This may upset the minority of Brexiters who clamour for immediate exit at any economic costs. Any other decision while politically popular pre-Brexit will be democratically damaging to the British state post-Brexit. From this perspective, the decision is simple. The eleven judges may feel as if they are between a rock and a hard place but actually they are not. The UKSC may be damned by the popular press if it does refer, but democracy in the United Kingdom will be damned if it doesn’t.

[18] In MR and Others Bangladesh [2010] UKUT 449 (IAC) (Rahman C83/11) Justice Blake concluded in a case before the Immigration and Asylum Tribunal that an interpretation by the CJ was necessary and referred a series of questions on Article 3(2) of the Citizenship Directive.

[24]Pursuant to the provisions of Article 104b of the Rules of Procedure, available for cases falling within the area of freedom, security and justice. See COUNCIL DECISION of 20 December 2007 amending the Protocol on the Statute of the Court of Justice (2008/79/EC, Euratom) OJ L24/ 42 29 Jan 2008.